The Moana case

The court judgment in the Moana case is now online, and this is a critical case to understanding the fracas around Judge Callinicos, who presided over it. It was his questioning of Oranga Tamariki staff during it that led to the Acting CE of OT approaching the heads of bench to complaint about how he felt his staff were treated, and then led to the heads of bench approaching Judge Callinicos while the trial was still underway.

The summary of the case is that Moana’s mother was not deemed capable of looking after her, and she was placed with a foster family where she thrived. However the foster parents were not Maori, and despite Moana having spent three happy years there, OT tried to transfer custody and care of Moana to another family, who were Maori.

Now let’s look at some findings of fact by Judge Callinicos about OT staff:

It is apparent from the evidence that, unbeknown to the caregivers, [GW]’s lawyer and the Court, certain Ministry personnel had been planning to retract from the purported permanent placement of [GW] with the [S]’s and instead place her with [RQ]’s caregivers. The evidence in support of this being a clandestine strategy is both
strong and concerning

So he found OT staff had a secret strategy to remove Moana from her caregivers and this was hidden from the caregivers, Moana’s lawyer and the court.

The evidence demonstrates how [the first social worker] operated simultaneously in two worlds; what she said or wrote to persons external to the Ministry, and what she communicated internally of it. The external and internal communications were often polar opposites.

The OT social worker said one thing internally and the polar opposite externally. Beginning to see why the Judge may have been hard on them – especially considering nothing less than the entire future welfare of a child is at stake here.

The fact that any social worker (Permanency, Caregiver or Allocated) undertakes their role without reading the
statutory plans, but instead relies solely on the untested comments of another social worker, is a process that is destined to yield poor outcomes. It renders the statutory report process nugatory and could place children at risk of harm to their well-being. The quality of any decision, whether by a social worker or a Court, is intrinsically linked to the quality of input information relied upon in formulating that decision.

Again starting to see who OT staff may have had a hard time in court.

They subsequently made a s 15 report of concern and uplifted her from her day care without informing the caregivers. The uplift was done in breach of the condition to the s 101 order which the Chief Executive had consented to

They broke the terms of the custody order.

Judge Harrison recorded her concerns as to what she called the “untruthful, unprofessional…and emotionally abusive” statements made by one social worker.

This was the finding of the Judge who heard the attempt to remove Moana from her caregivers. Rather damning.

The first failing by the Ministry arose from inadequate production of relevant information to [GW]’s lawyer and the caregivers following their respective requests under the Official Information Act 1982 (OIA).

OT failed to provide documents they were legally obliged to.

However, when the Chief Executive’s third witness was being examined it again became apparent that nondisclosure of relevant documents was still occurring. At that juncture it was not possible for the hearing to continue, as to do so would have meant a repeating pattern of witnesses having to be recalled for further examination each time the Ministry provided further documents, when such ought to have been produced months before the hearing occurred.

This is a huge issue. Twice OT broke the law by not providing full documents under disclosure. Would it be any surprise that he Judge would be unimpressed with OT legal staff? In fact he had previously successfully complained to the Law Society about two of them. I suspect it was due to stuff like this.

The failing by the Chief Executive to produce relevant documents within its power, possession or control was on a not insignificant scale. The Ministry had failed to produce a large number of correspondences between its officers which were of relevance to the issue of why the Chief Executive made its decision to reverse the permanent placement of [GW] with the caregivers.

The non disclosure was not a few minor memos. It was massive.

Given what has become evident in this proceeding, it is a concern as to whether the inadequate disclosure evident in this proceeding is an issue confined to this case, or whether the issue may be more widespread.

It seems it is likely OT doesn’t fully disclose information in other court cases. This is profoundly troubling, especially considering what is at stake in most of these cases.

Then we get to the bit where the Judge actually explains why he questioned the OT witnesses so vigorously:

It is against a background of the unique and convoluted circumstances that confronted this Court, that no stone could be left unturned in order to formulate reliable determinations of fact. In situations where the waters are so muddied, the Court is entitled if not obliged, to adopt an inquisitorial approach to ensure that all evidence relevant to the child’s welfare is not hidden from view. If some witnesses were upset by examination, either by counsel or questions from the Court, then I am sorry for their upset. But I would ask them to reflect upon the quite disturbing dynamics that
were being elicited from the examination regarding the performance of duties which are vital for the safety and welfare of children. If they hold to the view that matters intruded into judicial conduct, then they have an appropriate avenue for redress available to them.

Basically he had to adopt an inquisitorial approach because it was the only way to get to the truth.

[The first social worker] denied that she recognised the signature on that document. When another document bearing the same signature was put to her, she accepted that the initial document had in fact been signed by her. I find it implausible that a person would not recognise their own signature, particularly where the denied and accepted signatures bore a remarkable resemblance.

So this OT social worker said under oath that she did not sign a document, and only recanted under questioning. The very questioning that OT then complained about to the heads of benches.

This is where it is farcical for the heads of benches to insist that their attempt at intervention wasn’t to affect the outcome, just the in court behaviour. It is naive to think the two can be separated. If the Judge can’t rigorously interrogate witnesses who are lying, then the outcome of the cases may be radically different.

That email shows an alarming degree of deception to the child’s lawyer, as her statements are at complete odds with the background agendum she had been pursuing at the very same time to encourage a halt to permanency. This email cannot be construed in other than extremely positive terms about the [S]’s, how they are working well with the
Ministry, how it was the social worker who was coordinating access and how she hopes that permanency of placement will move quickly.

Here the social worker was saying in external reports that the caregivers were doing a “fantastic job” while internally she was lobbying to get them replaced. And remember this is happening within an incredible powerful government agency.

The concerns posed to the reliability of her evidence increased when she again stated that her actual position was not as she had stated in her report

Mickey Mouse.

Despite her repeated allegations that the caregivers had no cultural sensitivity or concern, she was unable to provide any plausible explanation as to why her statutory report to the Court indicated the converse. When the contradiction was put to her, she replied that she had no answer. In addition, there was no evidence produced by any witness that these purported concerns about their cultural capacities was ever raised with the caregivers.

So as you read through the Judgement, you are probably like me asking why it is the Judge who is being criticised here. Why has the Minister not sent a rocket into OT for such terrible behaviour by OT.

When I raised with [the first social worker] the concern that she was now saying the information in her Court reports was false, she responded by stating; “The information in that report is not false, it just doesn’t have the full information”. Her response is concerning as it infers she believes it is acceptable for any person to provide only an edited or selective picture to a Court, especially in an affidavit or statutory report.

Indeed.

She asserted the caregivers were racist towards her. There is not a skerrick of evidence supporting such a conclusion. Rather, the evidence is overwhelming in demonstrating that from the outset of her role, her judgement was influenced by a view that, regardless of all other factors and principles, Māori children must be with Māori caregivers.

And nevermind what was best for Moana. The Judge notes:

While it is and must be an ideal goal that children of a specific cultural group be with caregivers who are from the same family or cultural group, sadly that may sometimes not be achievable. The key flaw in applying a belief driven approach to social work or legal practice is that it distracts from the mandatory holistic assessment of what outcome is in the well-being and best interests of the subject child according to the significant array of mandatory principles in ss 5 and 13.

Very sensible.

I share Judge Harrison’s concerns about the social workers’ actions. Given this recording was quickly used in support of
an attempted without notice application to effect a change in placement, I regret to conclude that the recording was a device used to expedite achievement of what the social work team was desirous of doing. It was a miscalculated attempt to usurp the very purpose of this substantive hearing.

Basically what they tried to do was get Moana removed without notice by claiming she was in danger. If Judge Harrison had granted this, then the main case under Judge Callinicos would probably not proceed.

Now in case you think the Judge was hard on all witnesses, he notes:

Mrs [H] was an impressive and insightful witness. Impressive is perhaps an understatement as to the sheer dignity and mana of Mrs [H]. What stood out is that she gave her evidence from an absolute sense of obligation to advise the truth, there was no hint of her evidence being coloured by desired outcome: a trait which can often arise in cases where protagonists are as polarised as in the situation before me. Mrs and Miss [H] are to be commended for their honesty, insight, compassion and gentle presentation of their recollections of circumstances. There was no point at which I held any doubt about the accuracy of their evidence.

I’m pretty sure Mrs H and Miss H did not feel bullied in the court – probably because they didn’t lie to it.

And so what did the Judge find:

When Oranga Tamariki became involved for [GW], she was in very poor state: her teeth were so decayed that a dentist had to extract the majority of her front teeth. She had a club foot which required surgery to rectify. [JQ] also had rotten teeth which required removal and he was underweight, … In addition to her poor physical condition, it is possible that she may also have been the victim of sexual molestation. She was traumatised by her experiences and by disruption to her developing attachments. She was afraid of males. She was in this state when she was placed with Mr and Mrs [S],

Poor girl.

From the very moment [GW] went into the care of Mr and Mrs [S] she found; love, stability, devotion, nutrition, freedom from family violence and substance abuse. Her medical and emotional needs were and have been consistently met,

Caregivers like Mr and Mrs S do amazing work.

The actions of the social workers from the incident on 8 January 2021 and for the week or so thereafter, were emotionally and psychologically abusive of [GW]. There was no reasonable justification for such extreme actions. The actions were driven more by Oranga Tamariki’s entrenched desire to remove the child from a stable placement than
anything to do with her well-being, objectively measured. … Instead, the most abusive actions have actually been driven by the Ministry and its persistent questioning of a 5-year old child to elicit information supportive of the Ministry’s case.

OT is meant to help children, not harm them.

The final decision by the Judge seemed very pragmatic. The caregivers are given custody of Moana. The Maori parents who were willing to look after her were given guardian status so they are involved with decision making. Mrs and Miss H are also given access, so Moana will have many adults caring for her, but in the custody of the caregivers who have done such a good job these last three years.

If you have time, read the entire 145 page judgment and it will be crystal clear why OT went running to the heads of benches complaining about the Judge, They got caught out not just lying to the court, but breaking disclosure requirements on multiple occasions. No wonder they were having a bruising time in court – but that was the fault of OT, not the Judge.

It staggers me that the two bench heads would listen to the complaints from OT, and decide they had substance, and would intervene with Judge Callinicos before the case was completed.

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